Raymond v. Brauer, 2012 NSCA 22

NOVA SCOTIA COURT OF APPEAL Citation: Raymond v. Brauer, 2012 NSCA 22 Date: 20120224 Docket: CA 375964 Registry: Halifax Between: Paulette Raymond Appellant/Applicant v. Connie Brauer Respondent Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: February 23, 2012, in Halifax, Nova Scotia, In Chambers Held: Motion for an injunction and directions, directed to be held inter partes . Counsel: Appellant/Applicant in person Reasons for judgment : [ 1 ] The appellant Ms. Raymond, by an ex parte motion, seeks an injunction against the respondent and directions. I asked Ms.

Raymond to address first whether the motion could be made ex parte, or required notice to the respondent. I reserved my ruling on that issue, without hearing the merits. This is my decision. In my view, Ms. Raymond ’ s motion must be made after notice to the respondent. Nothing in these reasons should be taken as a comment on the merits. [ 2 ] Ms. Raymond and her former husband Victor Harris have undergone a difficult and litigious divorce. Those events are recounted in earlier decisions of the Nova Scotia Supreme Court ( 2009 NSSC 272 ) and this Court ( 2010 NSCA 94 ) and will not be repeated here.

[ 3 ] On March 23, 2011, Justice Warner of the Supreme Court issued an order that, without prior leave of the Court, Mr. Harris be enjoined from starting or continuing any litigation against Ms. Raymond or his children respecting the marriage or divorce. [ 4 ] In late 2011, Ms. Raymond filed a motion in the Supreme Court of Nova Scotia against Ms. Brauer under s. 45B of the Judicature Act , R.S.N.S. 1989, c. 240, as amended by S.N.S. 2009, c. 17, s. 1 .

Section 45B(2) permits the Court to apply a vexatious litigant order to a spokesperson for the enjoined party. Ms. Raymond says that Ms. Brauer has been Mr. Harris ’ spokesperson, and the injunction should apply to Ms. Brauer. [ 5 ] Justice Warner heard the motion on December 12, 2011. According to the transcript, at that hearing both Ms. Raymond and Ms. Brauer appeared, without counsel. By an oral decision on that day, Justice Warner expressed sympathy for Ms. Raymond ’ s position, but dismissed her motion, saying: What I find is that there is no materials [ sic ] filed by Ms.

Raymond that is before the Court as of the date of the filing of her motion on October 7th, 2011, that would give this Court jurisdiction to reconsider the order it made on March 23rd, 2011, which encompasses conduct by Mr. Harris or anyone associated with him directly or indirectly from commencing any proceedings in a court. [ 6 ] Ms. Raymond appealed Justice Warner ’ s ruling of December 12, 2011 to this Court. Her Notice of Appeal contends that Justice Warner misinterpreted s. 45B and the associated provisions of the Judicature Act .

According to an affidavit of service in the Court ’ s file, the Notice of Appeal was served on Ms. Brauer on February 1, 2012. [ 7 ] On February 17, 2012, Ms. Raymond filed a motion for hearing in chambers of the Court of Appeal. The motion was made ex parte , and has not been served on Ms. Brauer. The motion seeks an injunction against Ms. Brauer. Ms. Raymond ’ s requested order would resemble the order that Justice Warner denied on December 11, 2011. Ms. Raymond also sought directions on several matters. [ 8 ] I heard the motion on February 23, 2012. Ms. Raymond attended.

The respondent was not in attendance, having received no notice. [ 9 ] I told Ms. Raymond that I would hear her first on the issue of whether her motion can be brought ex parte , or only after notice to the respondent. I told her that I wished to determine that issue before hearing submissions on the merits. Ms. Raymond made her submissions on that issue. In

summary, she says that because of Ms. Brauer ’ s history in earlier litigation of extreme behaviour, interruptions in court, and abuse over the internet, I should hear Ms. Raymond ’ s motion without notice to Ms. Brauer. [ 10 ] With respect, I am unable to agree that I may hear this motion ex parte . [ 11 ] The motion is not for a stay of execution, a remedy that is routinely considered by a chambers judge. Nor does Ms. Raymond ’ s Notice seek only an “ interim ” order. The injunction requested in the ex parte motion would have an effect similar to the order that Ms.

Raymond sought unsuccessfully from Justice Warner in the decision under appeal. It resembles the order that might be considered by the full panel of this Court, if Ms. Raymond ’ s appeal is allowed. [ 12 ] The matter before Justice Warner proceeded in the presence of both Ms. Raymond and Ms. Brauer. Ms. Raymond ’ s Notice of Appeal to this Court has been served on Ms. Brauer. Clearly the appeal proper will require the full participation of the respondent in written and oral submissions.

Yet this injunction, sought ex parte, would provide basically the same remedy without an opportunity for input by the respondent. [ 13 ] In cases of immediate urgency, an ex parte injunction sometimes issues to preserve the status quo until shortly thereafter, when the court reconsiders the issue after notice to the respondent and after the respondent is given an opportunity to make submissions. That is not this case. There is nothing immediately at risk, to be preserved for a short time, until Ms. Brauer is notified. Ms. Raymond ’ s concern is that, if Ms. Brauer attends in court at any date, Ms.

Raymond will be subjected to what she considers to be intolerable interruptions and abuse.

[ 14 ] That concern, in my respectful view, does not entitle an applicant to an injunction without advance notice to the respondent. The concern, to the extent it is justified, may be addressed by the appropriate courtroom protocols at the inter partes hearing. [ 15 ] I decline to hear this motion ex parte . Ms. Raymond is free to reschedule her motion at a new date after the motion documentation is properly served on the respondent. [ 16 ] Costs of the motion on February 23, 2012 will be in the cause of the appeal. Fichaud, J.A.